durie tangri llp clement s. roberts (sbn 209203) …€¦ · defendant fitbit, inc.’s notice of...
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DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR ATTY. FEES UNDER
35 U.S.C. § 285 / CASE NO. 3:17-CV-05068-VC
DURIE TANGRI LLP CLEMENT S. ROBERTS (SBN 209203) croberts@durietangri.com TIMOTHY C. SAULSBURY (SBN 281434) tsaulsbury@durietangri.com EUGENE NOVIKOV (SBN 257849) enovikov@durietangri.com 217 Leidesdorff Street San Francisco, CA 94111 Telephone: 415-362-6666 Facsimile: 415-236-6300 Attorneys for Defendant FITBIT, INC.
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
SMART WEARABLE TECHNOLOGIES, INC.,
Plaintiff,
v.
FITBIT, INC.,
Defendant.
Case No. 3:17-cv-05068-VC DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR ATTORNEY FEES AND COSTS UNDER 35 U.S.C. § 285 Date: May 10, 2018 Time: 10:00 a.m. Ctrm: 4, 17th Floor Judge: Honorable Vince Chhabria
Case 3:17-cv-05068-VC Document 132 Filed 02/21/18 Page 1 of 21
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i DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR ATTY. FEES UNDER
35 U.S.C. § 285 / CASE NO. 3:17-CV-05068-VC
NOTICE OF MOTION AND MOTION
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on May 10, 2018, at 10:00 a.m. in Courtroom 4, 17th Floor of the
San Francisco Courthouse, U.S. District Court for the Northern District of California, 450 Golden Gate
Avenue, San Francisco, CA 94102, or as soon thereafter as the Court may deem appropriate, Defendant
Fitbit, Inc. (“Fitbit”) will appear before the Honorable Vince Chhabria and present Fitbit’s Motion Fees
and Costs under 35 U.S.C. § 285 as well as its concurrently filed Motion for Sanctions Under Rule 11
(“Renewed Rule 11 Mot.”).
Fitbit asks the Court to find that this case is exceptional, that SWT’s counsel has violated Rule 11,
to award Fitbit its reasonable attorney fees and costs, to hold SWT and its counsel jointly and severally
liable therefor, and to issue such other sanctions as the Court finds appropriate.
Case 3:17-cv-05068-VC Document 132 Filed 02/21/18 Page 2 of 21
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ii DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR ATTY. FEES UNDER
35 U.S.C. § 285 / CASE NO. 3:17-CV-05068-VC
TABLE OF CONTENTS
Page
I. INTRODUCTION ...........................................................................................................................1
II. BACKGROUND .............................................................................................................................2
A. SWT Continued Asserting an Infringement Theory It Knew To Be Wrong. ......................2
B. SWT Offered Conflicting Excuses for Maintaining Its Infringement Theory. ....................3
III. ARGUMENT ...................................................................................................................................5
A. The Substantive Baselessness of SWT’s Case Makes It Exceptional. ................................5
1. SWT Had No Basis to Allege That Fitbit’s Products Calculated 6-DOF. ...............6
2. SWT Had No Basis to Allege That Fitbit’s Products Display 6-DOF. ...................6
3. SWT’s Substantive Case Became Even Weaker On May 26, 2017. .......................9
B. SWT’s Unreasonable Litigation Conduct Warrants an Exceptional Case Finding. ............9
1. SWT Failed To Conduct an Adequate Pre-filing Investigation. ..............................9
2. SWT Failed to Appropriately Respond to Fitbit’s Letter. .....................................10
3. SWT Asserted New (Meritless) Theories In Response To Summary Judgment. ...............................................................................................................11
C. Fitbit’s Fees Are Reasonable. ............................................................................................12
D. The Court Should Award Fitbit Its Expert Fees Under the Court’s Inherent Power. ........14
E. The Court Should Hold SWT’s Counsel Jointly And Severally Liable. ...........................14
IV. CONCLUSION ..............................................................................................................................15
Case 3:17-cv-05068-VC Document 132 Filed 02/21/18 Page 3 of 21
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iii DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR ATTY. FEES UNDER
35 U.S.C. § 285 / CASE NO. 3:17-CV-05068-VC
TABLE OF AUTHORITIES
Page(s)
Cases
AdjustaCam, LLC v. Newegg, Inc., 861 F.3d 1353 (Fed. Cir. 2017)..................................................................................................... 5, 8, 12
Bywaters v. United States, 670 F.3d 1221 (Fed. Cir. 2012)............................................................................................................. 13
Digital Empire Ltd v. Compal Electronics Inc. Group, No. 14cv1688 DMS (KSC), 2015 WL 11570939 (S.D. Cal. Dec. 11, 2015) ....................................... 11
Hunter’s Edge, LLC v. Primos, Inc., No. 1:14-cv-00249-MHT-WC, 2016 WL 9244954 (M.D. Ala. Sept. 6, 2016) .................................... 11
ICON Health & Fitness, Inc. v. Octane Fitness, LLC, 706 F. App’x 666 (Fed. Cir. 2017) ......................................................................................................... 5
Johnson v. Comm’r of Internal Revenue, 289 F.3d 452 (7th Cir. 2002) ................................................................................................................ 15
MarcTec, LLC v. Johnson & Johnson, 664 F.3d 907 (Fed. Cir. 2012)............................................................................................................... 14
Mathis v. Spears, 857 F.2d 749 (Fed. Cir. 1988)......................................................................................................... 12, 13
My Health, Inc. v. ALR Technologies, Inc., No. 2:16-cv-00535-RWS-RSP, 2017 WL 6512221 (E.D. Tex. Dec. 19, 2017) ................................... 13
Octane Fitness, LLC v. Icon Health & Fitness, Inc., 134 S. Ct. 1749 (2014) ........................................................................................................................ 1, 5
Q-Pharma, Inc. v. Andrew Jergens Co., 360 F.3d 1295 (Fed. Cir. 2004)............................................................................................................. 12
Segan LLC v. Zynga Inc., 131 F. Supp. 3d 956 (N.D. Cal. 2015) ........................................................................................... passim
ThermoLife Int’l, LLC v. Myogenix Corp., No. 13CV651, 2017 WL 1235766 (S.D. Cal. Apr. 4, 2017) ............................................................ 9, 10
Wood v. McEwen, 644 F.2d 797 (9th Cir. 1981) ................................................................................................................ 15
Yufa v. TSI Inc., No. 09-CV-01315, 2014 WL 4071902 (N.D. Cal. Aug. 14, 2014) ...................................................... 10
Case 3:17-cv-05068-VC Document 132 Filed 02/21/18 Page 4 of 21
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iv DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR ATTY. FEES UNDER
35 U.S.C. § 285 / CASE NO. 3:17-CV-05068-VC
Statutes
18 U.S.C. § 1821(b) .................................................................................................................................... 14
35 U.S.C. § 285 .................................................................................................................................... passim
Rules
Fed. R. Civ. P. 54(d)(1)............................................................................................................................... 13
Fed. R. Civ. P. 56(d) ..................................................................................................................................... 5
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1 DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR ATTY. FEES UNDER
35 U.S.C. § 285 / CASE NO. 3:17-CV-05068-VC
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
On February 1, 2018, the Court granted Fitbit’s motion for summary judgment of non-
infringement, finding that “the record contains no evidence that the Blaze and the Surge do what SWT
alleges.” D.I. 80 at 1. This ruling came after more than a year of litigation, during which Fitbit spent
more than $700,000 to defend itself. While the burdens of litigation are, ordinarily, a cost of doing
business, this case is exceptional both because of the substantive baselessness of SWT’s positions, and
because of the unreasonable manner in which SWT litigated. See Octane Fitness, LLC v. Icon Health &
Fitness, Inc., 134 S. Ct. 1749 (2014).
First, SWT’s lawsuit was substantively groundless from the start because: (i) while Fitibit’s
documents said that the accused products contained a gyroscope, SWT had no basis to allege that either
accused product calculated 6-DOF information, either using that gyroscope or otherwise; and (ii) SWT’s
assertion that the products displayed “the accelerations of the body-segment relative to each of the x, y,
and z-axes” of a Cartesian reference frame when it displayed a user’s step count was based on a frivolous
claim construction position. Indeed, that position was so frivolous that SWT has now abandoned it—but
has done so in favor of an equally frivolous position that conflicts with SWT’s statements to the PTO.
Second, last May, Fitbit gave SWT definitive evidence that: (i) one of the two accused devices
did not contain the accused gyroscope; (ii) the gyroscope in the other device was not operational; and (iii)
the products contained only one operative sensor—which meant that, as a matter of physics, they could
not calculate six degrees of freedom (“6-DOF”). Despite this evidence, SWT continued to assert the
same baseless infringement theory all the way through summary judgment in January.
Third, SWT litigated this case in an unreasonable manner. Among other things: (i) SWT refused
to examine Fitbit’s source code until late September; and (ii) opposed Fitbit’s summary judgment motion
with a series of new (and equally baseless) infringement theories that were not in SWT’s contentions and
which SWT never sought leave to add.
Many of these issues overlap with those presented in Fitbit’s concurrently re-filed Rule 11
motion. This motion assumes familiarity with that pleading and endeavors not to repeat the arguments
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2 DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR ATTY. FEES UNDER
35 U.S.C. § 285 / CASE NO. 3:17-CV-05068-VC
therein.1
II. BACKGROUND
The briefs Fitbit has filed in support of summary judgment and its motion for Rule 11 sanctions
contain a detailed explanation of the asserted patent and claim, and the conduct of SWT and its counsel
up to the filing of SWT’s summary judgment opposition. We will not repeat those facts here but, for the
Court’s convenience, a timeline of those events is attached as Appendix A.
A. SWT Continued Asserting an Infringement Theory It Knew to Be Wrong.
On January 25, 2018, despite the uncontroverted evidence that neither accused device has an
operable gyroscope, SWT appeared at the summary judgment hearing and said that it opposed summary
judgment based on its the infringement theory in its infringement contentions—namely that the accused
Fitbit products used a gyroscope to calculate 6-DOF information:
MR. VOWELL: That first question is, yes, we do believe they still – that it’s – at least for purposes of summary judgment on this record, that summary judgment should be denied based on our current infringement theory.
***
MR. VOWELL: No, your honor. We believe they infringed based on the use of an accelerometer plus at least one other sensor. Originally we thought it was the gyroscope. We still believe that is true. But there are other sensors . . . . [S]o we believe there may be additional theories of infringement that we would assert . . . .
Decl. of Clement S. Roberts in support of Motion (“Roberts Decl.”) Ex. A at 9:2–5; 10:15–25. SWT’s
counsel did (shortly after this assertion) concede that SWT’s current “infringement theory” was wrong
with respect to the Blaze, which lacks a gyroscope. Id. at 11:2–14. But the point remains that, even at
the summary judgment hearing, SWT repeatedly asserted that it was maintaining its theory that, at least
as to the Surge, Fitbit infringed through the use of a gyroscope.
This was remarkable because, at this point, SWT had no evidence that the Surge contained an
operable gyroscope, much less that it used it to calculate 6-DOF information. Fitbit conclusively proved
1 This court has previously held that sanctions under § 1927 require a culpability showing greater than that required by Rule 11. Segan LLC v. Zynga Inc., 131 F. Supp. 3d 956, 965 n.3 (N.D. Cal. 2015). For this reason, and because Fitbit is moving for sanctions under Rule 11, it is not moving for the duplicative relief provided by § 1927.
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3 DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR ATTY. FEES UNDER
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that point by showing (among other things) that the gyroscope’s chip select pin was deactivated. SWT
responded by claiming that its expert had refuted that evidence:
MR. VOWELL: Your honor, I think there were a number of points that we already addressed in our briefs, but I think it’s important to point out in specific to the chip select pin that was mentioned quite a number of times – and this is addressed in our brief – and Mr. Monaco, our expert, does address that, that is, in only one mode that that particular chip select pin is required the SPI mode. And that’s – for the record, that's the Demarest declaration, page 5, paragraph 5.
Id. at 41:8–16. This was a false statement. The Monaco declaration never addresses the status of the
gyroscope’s chip select pin, states that it is activated, or claims that the chip acts in some mode other than
SPI. See ECF No. 99-4 at 3–4. That is why SWT’s counsel only cited the declaration of Fitbit’s expert
(Mr. Demarest) and did not even attempt to cite a supporting passage from the Monaco declaration.2
B. SWT Offered Conflicting Excuses for Maintaining Its Infringement Theory.
During the summary judgment hearing, the Court repeatedly asked SWT why, if it had some
other theory of infringement, it never moved to amend its contentions. In response, SWT’s counsel
asserted that they had not sought leave to amend because they were distracted by Fitbit’s motion to
change venue. Roberts Decl. Ex. A at 6:11–7:13; 19:19–22. This assertion is not credible. First, during
the period between Fitbit’s May letter and the October CMC, Fitbit wrote Plaintiff four separate times
reminding SWT that it had “no infringement case because neither accused device makes use of sensors
(or a combination of sensors) capable of capturing six degrees of freedom information” and “urg[ing]
[SWT] to review the source code demonstrating these basic facts about how the devices work.” Roberts
Decl. Exs. B–E. In response, SWT did not claim that it had been distracted, and nor did it promise to
promptly review the code. Instead, SWT claimed that it had taken no action because it could not review
the code without additional documents. Roberts Decl. Ex. B. When Fitbit produced those documents,
SWT again made no efforts to review the code, prompting Fitbit to again urge SWT to review the source
2 It is worth noting that the Monaco declaration explicitly says that the Surge is configured with “input and output connections for serial communication over the serial peripheral interface (SPI.)” Monaco Decl. ¶ 23, ECF No 94-6. In other words, not only is there nothing in the Monaco declaration to suggest that the Surge does not use SPI, the declaration affirmatively says that the sensors are connected though SPI.
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4 DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR ATTY. FEES UNDER
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code “as soon as possible”:
It is now (1) more than two months since we made available the source code demonstrating we can’t possibl[y] infringe, (2) seven weeks since we wrote you (and provided a declaration from Fitbit’s Lead Research Scientist) explaining why your infringement case is without basis, and (3) over a week since we’ve produced the technical documentation you said you needed to review the source code. To date, you have not made arrangements to review our source code. At this point, we have genuine concerns that your demand for technical documents was merely a pretext for stringing this case along while keeping SWT ignorant of the source code demonstrating that SWT has no infringement case. . . . In any case, we again urge you to please make arrangements, as soon as possible, to come review Fitbit’s source code.
Id. (emphasis added). Again, SWT did not respond to this request by saying it had been distracted, or
with a promise to review the code as soon as possible. And it did not actually come review the code until
two and a half months later. In short, SWT’s suggestion that it was so distracted that it somehow lost
track of the need to validate its infringement theory is incompatible with the record.
Even if it were true that SWT had been distracted by Fitbit’s transfer motion, that motion was
fully decided in August. ECF. No. 60. Fitbit’s summary judgment motion was not heard until late the
following January. ECF. No. 119. During the interim, Fitbit: (i) contacted SWT multiple times urging
its counsel to come look at the code; (ii) submitted a CMC statement noting that SWT’s theory was
wrong; (iii) conducted a meet and confer between lead counsel about those precise statements in the
CMC statement; (iv) requested, at the CMC, permission to file for summary judgment on this basis; (v)
filed its summary judgment motion; and (vi) when SWT opposed summary judgment rather than drop the
case, served SWT with a Rule 11 motion. Roberts Decl. Exs B–E; Ex. F (CMC Hrg. Tr.) at 2:18–3:4;
ECF No. 68 (CMC Statement) at 3–4; ECF No. 80 (Summary Judgment); ECF No. 102. SWT was not
“distracted” by the motion to transfer during this period.
Perhaps recognizing this issue, at the summary judgment hearing, SWT’s counsel (under
questioning from the Court) switched from contending that SWT was distracted by the transfer motion to
arguing that it was inhibited by Fitbit’s Rule 11 motion. Roberts Decl. Ex. A at 16:21–19:18. It is hard
to see why a Rule 11 motion (especially one based on the premise that SWT’ ongoing assertion of a
frivolous and demonstrably incorrect infringement theory was sanctionable) would have kept SWT from
seeking to amend its infringement contentions. Indeed, Rule 11 requires a three-week safe harbor
between service and filing in order to allow and encourage a respondent to change course.
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5 DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR ATTY. FEES UNDER
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When the Court pointed this problem out to SWT, its counsel switched excuses once again,
saying that SWT had not amended its contentions because “even with the summary judgment record the
way it is, it is still a bit unclear as to which of the additional sensors is – and so it wasn’t – we did not
want to have to come ask the Court a second or third time to amend the contentions.” Id. at 20:1–24. In
other words, despite its access to Fitbit’s internal technical documents, the products’ source code, and a
deposition of a senior Fitbit engineer, SWT was still without any theory that it was willing to stand
behind. Despite this, SWT did not dismiss its existing (incorrect) theories, or move for additional
discovery under Fed. R. Civ. P. 56(d).
On February 1, after more than 14 months of litigation, the Court granted Fitbit’s motion for
summary judgment. ECF No. 123. The Court found that the evidence conclusively shows that the Blaze
has no gyroscope, and the Surge does not have an operable one. The Court also held that SWT’s new
theories were “unsubstantiated and outside the scope of SWT’s infringement contentions” and that Fitbit
would be entitled to summary judgment even if they had been properly alleged. ECF No. 123 at 2–3.
III. ARGUMENT
The fee-shifting provision for patent cases, 35 U.S.C. § 285, states “[t]he court in
exceptional cases may award reasonable attorney fees to the prevailing party.” Under the Supreme
Court’s decision in Octane Fitness, 134 S. Ct. at 1756, an exceptional case is one that, considering the
totality of the circumstances, “stands out from others with respect to the substantive strength of a party’s
litigating position (considering both the governing law and the facts of the case) or the unreasonable
manner in which the case was litigated.” Octane Fitness, 134 S. Ct. at 1756. A litigant may show that it
is entitled to fees under Section 285 by a preponderance of the evidence. Id. at 1758.
Since Octane, the Federal Circuit has made it clear that an unreasonable claim construction
position can justify an exceptional case finding. AdjustaCam, LLC v. Newegg, Inc., 861 F.3d 1353,
1360–61 (Fed. Cir. 2017); ICON Health & Fitness, Inc. v. Octane Fitness, LLC, 706 F. App’x 666, 669
(Fed. Cir. 2017). The Federal Circuit also has held that a weak infringement lawsuit can become
baseless after case events make clear that infringement is impossible. AdjustaCam, 861 F.3d at 1360.
A. The Substantive Baselessness of SWT’s Case Makes It Exceptional.
This case was filed based on a guess about how Fitbit’s products worked and a claim
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interpretation that no reasonable lawyer would have advanced. After May 26, 2017, its substantive
weakness was compounded by the fact that SWT was given detailed factual notice and evidence that
Fitbit’s accused devices did not and could not infringe.
1. SWT Had No Basis to Allege That Fitbit’s Products Calculated 6-DOF.
As explained in Fitbit’s motion for Rule 11 sanctions, there is no dispute about the fact that
Fitbit’s product documentation incorrectly said that the accused products contain a gyroscope. But this
does not change the fact that SWT had no basis to allege that either device used a gyroscope to calculate
6-DOF data. Renewed Rule 11 Mot. at 12–13; ECF No. 102-1 ¶ 5. Among other things SWT had: (a)
no documents indicating that the products calculated or used 6-DOF information; (b) no statements from
anyone at Fitbit asserting or suggesting that the accused products calculate 6-DOF information; and (c)
no physical evidence or testing results supporting such a conclusion. And, SWT simultaneously ignored
contrary evidence, such as the fact that consumer grade devices do not need 6-DOF to do things like
count steps, and the fact that companies tend to advertise (not conceal) advanced features like 6-DOF
tracking. See Renewed Rule 11 Mot. at 6. Thus, SWT’s claim that Fitbit used a gyroscope to calculate
6-DOF data was exceptionally weak from the beginning.
2. SWT Had No Basis to Allege That Fitbit’s Products Display 6-DOF.
SWT filed this case based on a frivolous interpretation of Claim 8’s “displaying” limitation. As
detailed in our Rule 11 motion, the only asserted claim of the patent in suit requires “displaying said
synchronized 6-DOF body-segment movement information and physiological information obtained at
step (f) in at least one format comprehensible to humans.” Renewed Rule 11 Mot. at 6–10 (citing ’882
patent, Claim 8). The chain of antecedents in Claim 8 make it unambiguous that the “body-segment
movement information” displayed in the final limitation is the “body segment movement information
descriptive of the movements of the body segment with respect to each of the x, y, and z-axes of an
inertial reference frame” recited in step (c) of the claim. Id. at 7.
SWT’s infringement contentions asserted that the “displaying” limitation was met by the display
of metrics like step count, distance traveled, time elapsed, and calories burned. The excerpts reproduced
below (from SWT’s contentions) show: (i) the Fitbit instrumentalities SWT accused of meeting the
“synchronized 6-DOF body-segment movement information” limitation outlined in green; and (ii) the
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7 DEFENDANT FITBIT, INC.’S NOTICE OF MOTION AND MOTION FOR ATTY. FEES UNDER
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instrumentalities SWT alleged to be the “synchronized . . . physiological information” outlined in blue:
Roberts Decl. Ex. G at 23, 24; id. Ex. H at 22, 23 (colors in original).
The metrics SWT outlined in green are not—and cannot reasonably be interpreted to be—a
display of the movement of the user’s wrist in six degrees of freedom. As explained in the Rule 11
motion, metrics like step count give no information about the movement of the body relative to any axis
of a Cartesian reference frame, much less information about the movement of the user’s wrist relative to
one (much less all three) of those axes. ECF No. 102 at 9. Thus, from the very beginning, SWT had no
reasonable basis to allege that the accused Fitbit products met the “displaying” limitation.
For this reason SWT, in its opposition to Fitbit’s Rule 11 motion, changed its interpretation of the
claims. In particular, SWT argued (for the first time) that the requirement of “displaying synchronized 6-
DOF body-segment movement information and physiological information” encompassed displaying any
information “derived” from the recited information. ECF No. 108 at 12. Put differently, SWT took the
position that, where Claim 8 calls for the display of synchronized body segment movement and
physiological information, the claim requires displaying neither—and instead encompasses the display
of any value that had been calculated from that data. But this position is no better than the one SWT
started with. Among other things, it contradicts the language of the claim (which says nothing about
derivation), is inconsistent with the specification (which distinguishes between “deriving” and
“synchronizing”), and bears no relationship to the plain meaning of “synchronized” (i.e., “to represent or
arrange (events) to indicate coincidence or coexistence”). See Renewed Rule 11 Mot. at 6.
Indeed, SWT has made representations both to the district court and to the PTAB that are contrary
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to the interpretation that SWT adopted in response to Fitbit’s motion for sanctions. In its opposition to
Fitbit’s motion to transfer, for example, SWT asserted that Claim 8 required obtaining “6-DOF data
descriptive of the movement of a subject which is synchronized and displayed with the physiological
data, such as the heart rate of the subject.” ECF No. 54 at 1 n.1 (emphasis added). At least in June 2017,
then, SWT still believed that “synchronized” meant that the 6-DOF body segment movement information
and the physiological data would be displayed with each other.
Then, in November, SWT told the PTAB that another defendant’s construction of
“synchronizing” rendered the “displaying” limitation superfluous because “the limitation ‘displaying said
synchronized 6-DOF body-segment movement information and physiological information’ necessarily
implicates ‘represent[ing] or arrang[ing] two or more things so as to indicate that they occurred
simultaneously.’” Ex. I at 10 (emphasis added). This, too, is consistent with SWT’s contentions and
contradicts the reading SWT advanced in response to Fitbit’s Rule 11 motion.
In short, both SWT’s original infringement theory and the claim construction it advanced in
response to Fitbit’s Rule 11 motion, are so weak as to be exceptional under §285. As in Segan LLC v.
Zynga Inc., the asserted claim “describes an invention very different” from the operation of the accused
products. 131 F. Supp. 3d at 960. As described in the specification, the benefit of “displaying
synchronized 6-DOF body-segment movement information and physiological information obtained at
step (f) in at least one format comprehensible to humans” was to obtain an improved way of determining,
for example, “whether the subject is horizontal or vertical, or whether he/she is changing from vertical to
horizontal . . . combined with data regarding physiological status” for uses such as monitoring the well-
being of the elderly. Ex. J at 3:5–59. And the examples the specification gives for displaying 6-DOF
movement data are things like a “virtual pelvis.” Id. at 14:42–26. No reasonable lawyer would have read
the patent and concluded that displaying metrics like step count or distance traveled falls within the scope
of Claim 8.
Much like the plaintiff’s interpretation of “access” to mean “send” in Segan, 131 F. Supp. 3d at
961, or the plaintiff’s interpretation of “rotation around a single axis” to mean “rotation around two axes
but only one at a time” in Adjustacam, 861 F.3d at 1360–61, SWT’s reading of “displaying said
synchronized 6-DOF body-segment movement information and physiological information” to encompass
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displaying step count is and was “so unreasonable as to make this case ‘exceptional’ within the meaning
of section 285, even without reference to [its] litigation conduct.” Segan, 131 F. Supp. 3d at 962-63.
3. SWT’s Substantive Case Became Even Weaker On May 26, 2017.
On May 26, 2017, Fitbit sent SWT a letter explaining that the accused products: (i) lack any
operational gyroscopes; (ii) have only one active movement sensor (a three-axis accelerometer); and
(iii) do not and cannot calculate 6-DOF movement data. Roberts Decl. Exs. K & L. With this letter,
Fitbit sent SWT: (i) a bill of materials for the Blaze; and (ii) a sworn declaration both stating that the
accused products did not calculate 6-DOF information and naming the functions that SWT would need to
examine in the source code to verify this assertion. Roberts Decl. Ex. L. Thus, at least as of May 26,
2017, SWT was on actual notice that its case was substantively baseless.
Yet, SWT never dropped or sought leave to amend its infringement theory. Indeed, SWT came to
the summary judgment hearing asserting that at least the Surge calculated 6-DOF information through
the use of a gyroscope. See Roberts Decl. Ex. A at 9:2–5 and 10:15–11:14. Those claims were meritless,
and SWT’s pursuit of them despite that lack of merit makes this case stand out from others.
B. SWT’s Unreasonable Litigation Conduct Warrants an Exceptional Case Finding.
1. SWT Failed To Conduct an Adequate Pre-filing Investigation.
As detailed in Fitbit’s Rule 11 motion, SWT failed to perform a reasonable pre-suit investigation.
Renewed Rule 11 Mot. at 10-14. Had SWT acquired samples of the accused devices and opened them
up to look inside—as Federal Circuit law requires—there would (at a minimum) have been one fewer
accused device in this case. Id. And, if SWT had performed even rudimentary testing on the products—
akin to the testing performed by third-party TechPats and attached to Fibit’s summary judgment papers—
it would not have filed this lawsuit at all. Id. at 12; ECF No. 80-14. SWT’s failure to do even these basic
things before filing a complaint weights in favor of awarding sanctions under § 285.
As a point of comparison, in ThermoLife Int’l, LLC v. Myogenix Corp., No. 13CV651, 2017 WL
1235766, at *6 (S.D. Cal. Apr. 4, 2017), the court found that the plaintiff’s failure to conduct an adequate
pre-filing investigation weighed in favor of an exceptional case finding. In that case, the court found that
the plaintiffs “nowhere indicate that they relied on anything other than advertisements before bringing
suit” and had ignored information (that could have been obtained by acquiring and examining the
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products’ labels) tending to show that some of the accused products did not infringe. Id. at *5. And,
while the plaintiff argued that the information it might have obtained from such an examination was
contradicted by the defendant’s own statements, the court found that this was no excuse; noting that the
“arguably misleading advertising does not sanction [plaintiff’s] prior complete failure to examine the
actual ingredients contained in Defendants’ products.” Id. at *6. The court concluded “that had
Plaintiffs conducted any reasonable pre-filing investigation, they would have been on notice that at least
some of the products in this litigation could not have infringed. . . . Accordingly, this weighs in favor of a
finding of this case being ‘exceptional’ for purposes of awarding attorney fees.” Id. at *7; see also Yufa
v. TSI Inc., No. 09-CV-01315, 2014 WL 4071902, at *3 (N.D. Cal. Aug. 14, 2014) (plaintiff’s failure to
obtain the accused product “suggests that Plaintiff did not conduct an adequate investigation prior, at the
very least, to filing his first amended complaint, and weighs in favor of finding that this case is
exceptional.”).
The same thing is true here. SWT did not conduct an adequate pre-filing investigation, and that
failure should weigh in favor of a sanctions award.
2. SWT Failed to Appropriately Respond to Fitbit’s Letter.
SWT responded to Fitbit’s May 26 letter by doing . . . nothing. SWT not only refused to dismiss
this case, but also: (i) refused multiple invitations to inspect Fitbit’s source code; (ii) expressed no
interest in deposing the engineer who provided the declaration until October, and (iii) made no attempt to
amend its infringement contentions. Roberts Decl. Exs. B–E id.; Ex. A at 3:20–9:1. Instead of
addressing the flaws in its infringement case, SWT demanded that Fitbit produce documents that were
both cumulative of Fitbit’s prior productions and irrelevant to the flaws that Fitbit had pointed out.3 In
fact, it was not until the case management conference forced SWT’s counsel to travel to San Francisco
that they finally inspected Fitbit’s source code—and, even then, they did not bring an expert. Roberts
Decl. Ex. M. Nor were these SWT’s only efforts to avoid dealing with its flawed infringement theory.
For instance, when SWT eventually took the deposition of Logan Niehaus (a Lead Research Scientist at
3 The irrelevance of the materials SWT demanded is discussed extensively elsewhere. See Renewed Rule 11 Mot. at 15–16; ECF No. 86 at 3–5. For that reason, Fitbit does not repeat that discussion here.
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Fitbit), it did not even ask him whether the accused products performed 6-DOF calculations, much less
whether other sensors (beyond a gyroscope) were used for that purpose.
SWT’s failure to address the problems in its case is exacerbated by the fact that SWT has offered
a shifting set of excuses for its failure to act, including the pendency of the transfer motion, the Rule 11
motion, and a supposed lack of information about Fitbit’s products (despite, e.g., unfettered access to the
source code, the deposition of Mr. Niehaus, and SWT’s inability even to identify, at the CMC or its
motion to compel, any other documents that it needed). See supra at II.B; ECF No. 88; Roberts Decl. Ex.
F at 15:3–22:9.
Other courts have found that conduct like SWT’s warrants an exceptional case finding. For
example, in Hunter’s Edge, LLC v. Primos, Inc., No. 1:14-cv-00249-MHT-WC, 2016 WL 9244954, at *5
(M.D. Ala. Sept. 6, 2016), the Court awarded fees in part because “[w]hen Plaintiff’s counsel was placed
on notice, repeatedly, of the apparent lack of merit of Plaintiff’s infringement claim, Plaintiff persisted in
pressing its claim and thereby forced Defendant to file for summary judgment.” And in Digital Empire
Ltd v. Compal Electronics Inc. Group, No. 14cv1688 DMS (KSC), 2015 WL 11570939, at *6–9 (S.D.
Cal. Dec. 11, 2015), the court sanctioned a plaintiff who responded to notice and evidence that the named
defendants never made or sold the accused products by refusing for months to either dismiss the case or
come forward with contrary evidence. Id. SWT’s conduct was no better, and in many ways worse, than
both of these defendants. That should weigh in favor of finding this case to be exceptional.
3. SWT Asserted New (Meritless) Theories In Response To Summary Judgment.
SWT responded to Fitbit’s summary judgment motion by raising new (meritless) infringement
theories it had never asserted in any set of infringement contentions. SWT served its infringement
contentions in April 2017, and an amended set later that month. See Roberts Decl. Exs. N & O. Both
sets (in attached charts) asserted that the accused devices infringed using an accelerometer and a
gyroscope. Roberts Decl. Ex. G at 12–14; Ex. H at 11–13; Ex. P at 12–14; Ex. Q at 11–13. Yet, when it
filed its summary judgment opposition, SWT argued that:
The Blaze infringes using a magnetometer instead of a gyroscope (even though Fitbit had provided clear evidence that the magnetometer was inoperable). ECF. No. 95 at 14–15.
The Surge infringes using a second accelerometer (even though Fitbit had provided clear evidence that the second accelerometer was inoperable). ECF. No. 95 at 15–16.
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The Blaze had an alternate configuration reflected in the schematic for a “non-form factor” board that showed a second accelerometer, despite the fact that Mr. Niehaus testified (and SWT’s own expert admitted) that the board is merely “an internal development tool” manufactured with additional components for testing an experimentation, was never sold to customers, and was likely never used with motion data. ECF No. 95 at 12, 14–15; ECF No. 95-01 ¶ 15; Roberts Decl. Ex. R at 191:12–192:4.
Fitbit might be infringing through some unspecified device allegedly corresponding to a patent Fitbit filed for in 2015. ECF No. 95 at 17–10.
The Court should deny summary judgment because SWT intended to accuse another Fitbit device, called the Ionic, even though it had been announced four months earlier and released two months prior to SWT’s opposition, and SWT had not sought leave to add it to the case. See ECF No. 95 at 4, 18–19.
SWT’s attempt to change theories in its summary judgment opposition without seeking leave to
amend is the kind of “dubious conduct” that weighs in favor of an exceptional case finding. AdjustaCam,
861 F.3d at 1361 (submitting supplemental expert reports and declarations making untimely new
infringement arguments is “dubious behavior” weighing in favor of an exceptional case finding); Segan,
131 F. Supp. 3d at 961–62 (noting, in finding a fees award warranted, that the plaintiff proposed a brand
new theory for the first time during the claim construction process).
In short, SWT: (i) filed a baseless case without an adequate pre-suit investigation (where such an
investigation would have ruled out, at least in part, the asserted claim of infringement); (ii) refused to
change course even after Fitbit produced definitive evidence and a sworn declaration demonstrating that
it did not infringe under SWT’s only infringement theory and could not infringe as a matter of physics;
(iii) responded with a series of never-before-seen arguments when Fitbit moved for summary judgment;
and (iv) premised its infringement theory with respect to the “displaying” limitation on a frivolous claim
construction position, and then (when confronted) changed that theory in ways that contracted SWT’s
own statements to the PTO. That is unreasonable conduct rendering this an exceptional case.
C. Fitbit’s Fees Are Reasonable.
Section 285 permits the award of “reasonable” attorneys’ fees in an exceptional case. Federal
Circuit law controls the calculation of reasonable attorney fees in a patent infringement case. Q-Pharma,
Inc. v. Andrew Jergens Co., 360 F.3d 1295, 1299 (Fed. Cir. 2004). “Normally this will encompass all
hours reasonably expended on the litigation.” Mathis v. Spears, 857 F.2d 749, 755–56 (Fed. Cir. 1988).
The Federal Circuit has endorsed the “lodestar” approach to calculating reasonable attorneys’ fees, which
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requires multiplying the number of hours reasonably expended by a reasonable hourly rate. Bywaters v.
United States, 670 F.3d 1221, 1225–26 (Fed. Cir. 2012). It has also held that, courts may consider
factors such as the “amount involved and results obtained,” the sophistication of the work, and the
client’s fee agreement. Id. at 1231–32.
Fitbit’s attorneys, and paralegals at Durie Tangri have spent a total of 1084 hours on this case
from the time it was filed through submission of this motion. Declaration of Eugene Novikov (“Novikov
Decl.”) at ¶¶ 13, 15, 17, 19, 23–26. Those hours include time working on motions, invalidity
contentions, meeting and conferring, and appearing in Court. A detailed breakdown of hours expended
and the corresponding fees incurred at Durie Tangri’s prevailing rates4 is shown in the Declaration of
Eugene Novikov, which also sets forth the qualifications of the timekeepers and the types of work
performed.5 The breakdown also includes reasonable costs that are recoverable under Section 285,
Mathis, 857 F.2d at 754, 757–58, but not under Fed. R. Civ. P. 54(d)(1). The total through submission of
this motion is $685,613.41 and we estimate that an additional $35,750 will be incurred through the
resolution of this matter at the district court level, for a total of $721,363.41. Novikov Decl. ¶¶ 29, 33.
The Declaration also provides a breakdown of fees and costs incurred before and after May 26, 2017, in
the event that the Court is inclined only to award fees incurred since that date.6
Notably, Fitbit is not seeking fees for the inter partes reexamination it filed against the patent in
suit. Although courts have awarded IPR fees in similar situations, My Health, Inc. v. ALR Technologies,
Inc., No. 2:16-cv-00535-RWS-RSP, 2017 WL 6512221, at *6 (E.D. Tex. Dec. 19, 2017), Fitbit did not
need to bring the IPR to prevail in this case because there is not (and never has been) a viable
infringement theory.
4 Durie Tangri’s prevailing rates for the timekeepers on this matter (a senior partner and two senior associates) are reasonable relative to prevailing market rates for San Francisco Bay Area Intellectual Property litigators. See Novikov Decl. ¶¶ 3, 5, 7. 5 These are the rates that Fitbit actually has and does currently pay in matters where it retains Durie Tangri on an hourly basis. Id. 6 Fitbit’s fee deal with Durie Tangri in this matter was based in part on a flat monthly fee. The fees Fitbit is seeking for time expended to date (based on the attorneys’ hourly rates) are slightly less than those incurred through February under that arrangement. Novikov Decl. ¶¶ 27–28. Fitbit is likewise seeking its anticipated fees based on a conservative estimate of its attorneys’ hourly rates in completing briefing and argument on this motion. Id.
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D. The Court Should Award Fitbit Its Expert Fees Under the Court’s Inherent Power.
While Section 285 does not expressly authorize the payment of expert witness fees in excess of
the $40 per day provided by 18 U.S.C. § 1821(b), “a district court has inherent authority to impose
sanctions in the form of reasonable expert fees in excess of what is provided for by statute.” MarcTec,
LLC v. Johnson & Johnson, 664 F.3d 907, 921 (Fed. Cir. 2012) (internal quotation marks omitted).
While “not every case that qualifies as exceptional under Section 285 will also qualify for sanctions
under the court’s inherent power,” an award of expert fees is justified, for example, when the adverse
party “pressed forward after receiving documentary evidence that refuted its allegations.” Id.
In this case Fitbit expended $28,041.50 in expert fees for the preparation of the following
materials:
(1) The declaration of Dr. Joseph Paradiso, Alexander W. Dreyfoos Professor at the Massachusetts Institute of Technology, in support of Fitbit’s motion for summary judgment.
(2) The declaration of Scott Demarest, an electrical engineer who performed the teardown and electrical testing of the accused devices, in support of Fitbit’s motion for summary judgment.
(3) The declaration of Dr. Paradiso in support of Fitbit’s motion for Rule 11 sanctions.
See Novikov Decl. ¶ 31. None of these expenses would have been necessary had SWT not pressed
forward with its frivolous infringement theory after Fitbit’s May 26 letter. Because these expert fees
were only incurred after SWT had ample time to course-correct, Fitbit asks the Court to award them.
E. The Court Should Hold SWT’s Counsel Jointly And Severally Liable.
In Segan, this Court awarded defendant Zynga its entire sum of attorneys’ fees and costs and held
the plaintiff’s attorneys liable for $100,000 of the award. Segan, 131 F. Supp. 3d at 964. While this
Court declined to hold plaintiff’s counsel jointly and severally liable for the entire fee award, this Court
wrote that the $100,000 sanction and the Court’s opinion “puts similarly-situated attorneys on notice of
the possibility” that they could be held jointly and severally liable for the whole award. Id.
In this case, the Court should hold SWT’s counsel jointly and severally liable for the entire award
for at least three reasons. First, the facts rendering this case exceptional are inextricably intertwined with
the actions of SWT’s counsel. It was SWT’s outside counsel who brought this case without performing
an adequate pre-suit investigation and who refused to drop the case in the face of definitive evidence that
Fitbit’s products cannot infringe. Second, this Court expressly warned SWT’s counsel that they could be
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liable for fees in the case management conference (Roberts Decl. Ex. F at 8:20–22 & 15:21–25) and
SWT has been aware of this Court’s decision in Segan at least since November. Thus, SWT’s counsel
has been aware of and has acted despite repeated warnings about the possibility of sanctions. Third,
SWT has refused to provide assurances that it is sufficiently capitalized to satisfy a Section 285 award
and both SWT and its parent company (WiLan) have refused to escrow the money that would be needed
to satisfy a fee award. Roberts Decl. ¶ 21 & Ex. S. There is, therefore, a real possibly that WiLan will
respond to a fee award by simply throwing SWT (which is just a shell company) into bankruptcy while
walking away from the fee award.
Among other things, this would mean that the fee award will have no corrective impact on
WiLan’s conduct or its attorneys. Indeed, this is one of many cases that SWT’s counsel has brought (and
settled) on the patent-in-suit based on the same (frivolous) claim construction argument. Renewed Rule
11 Mot. at 20. If SWT’s counsel faces no repercussions from this lawsuit, they will have profited from
their overall course of conduct and will not be dissuaded from bringing this kind of case in the future.
See Wood v. McEwen, 644 F.2d 797, 802 (9th Cir. 1981) (awarding fees in part on “[t]he filing of this
and thirty-six other cases, which repeatedly raise the same claims”); Johnson v. Comm’r of Internal
Revenue, 289 F.3d 452, 456–57 (7th Cir.2002) (“The Tax Court was not required to ignore [the
attorney’s] bad conduct in other cases; indeed, it would have been remiss not to consider it.”).
IV. CONCLUSION
Fitbit respectfully requests that the Court find this case exceptional pursuant to Section 285,
award Fitbit its attorneys’ fees and costs as enumerated in the supporting Novikov declaration, and hold
SWT’s counsel jointly and severally liable for the award pursuant to Rule 11.
Dated: February 21, 2018
By:
DURIE TANGRI LLP
/s/ Clement S. Roberts CLEMENT S. ROBERTS
Attorney for Defendant FITBIT, INC.
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CERTIFICATE OF SERVICE
I hereby certify that on February 21, 2018 the within document was filed with the Clerk of the
Court using CM/ECF which will send notification of such filing to the attorneys of record in this case.
/s/ Clement S. Roberts
CLEMENT S. ROBERTS
Case 3:17-cv-05068-VC Document 132 Filed 02/21/18 Page 21 of 21
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